Monday, October 17, 2011

Griffin, Reconceiving the War Powers Debate

Stephen M. Griffin, Tulane University Law School, has posted an important new paper, Reconceiving the War Powers Debate. He brings basic ideas and arguments from diplomatic history about the use of the war powers during the Cold War into a discussion about constitutional war power. This is important because legal scholars writing about war sometimes read and cite each other, but not works on the history of war and diplomacy. Just one thing that gets missed is the nature of Cold War era statebuilding, including the war powers.

The most important aspect of the postwar constitutional order, one with subtle, far-reaching and long-lasting effects, was the gradual erasure of the difference between wartime and peacetime. Because all foreign wars prior to 1950 had been authorized by Congress, the prewar constitutional order featured a sharp distinction between the powers of government in war and peace. As Hogan demonstrates, the early Cold War featured a massive effort to convince the President, Congress and the public that this distinction no longer made sense. This new "national security" ideology promoted the concept of "total war" in which all elements of government, society and the economy would be mobilized to meet the Soviet threat. As Hogan explains, "[i]n total war, the battle was not confined to the front lines but extended to the home front as well." Modern atomic weaponry meant that tremendous destruction could come with little warning. In these new circumstances, "American leaders would no longer have the time to debate the issue of war or peace or to prepare at a slow pace."

Here's Griffin's abstract:

Since the Vietnam War congressionalists and presidentialists have been locked into an unceasing controversy on presidential war powers. It has been increasingly difficult for each side to offer fresh evidence or new arguments. The purpose of this article and the larger project from which it is drawn is not so much to contribute to the existing scholarly debate as it is to reconceive it.

The war powers debate itself has lacked a historical context. Scholars have tended to assume that the debate is an age-old controversy from the early republic. I argue that it is fundamentally a product of the Cold War. Once we situate the war powers debate in a Cold War context, this naturally suggests that we focus on the distinctive assertions of power presidents made in this period. Over time, the academic debate has focused more on the claims of scholars than of presidents. While this is not entirely surprising, what is startling is how badly many prominent scholars have misunderstood the nature of these presidential claims. In turn, because of this misunderstanding the clarity with which the evidence from the founding period speaks to the contemporary war powers debate has not been appreciated fully. Beginning with Truman, all postwar presidents claimed that they had the unilateral power under Article II to initiate war, “real” war, full-scale war. The underappreciated crux of the war powers debate is what while this bold presidential claim was inconsistent with the historical meaning of the Constitution, it had an eminently defensible policy rationale that was widely supported, at least in the circumstances prevailing after World War II.

While I am not sympathetic to this unilateral presidential claim, the standard congressionalist critique is simply too limited. From the perspective of the executive branch, this claim did not appear extraordinary because it was encapsulated in a larger perspective, which many found persuasive, in which military force was one tool among others in advancing the foreign policy and preserving the national security of the United States. I contend that presidential war powers claims should be understood within the framework of American diplomacy generally and, more specifically, within the context of U.S. objectives and strategy in the Cold War period. The presidentialist position in the war powers debate cannot be understood and evaluated unless we have a firm grasp on the situation the executive branch faced in the early Cold War. We must expand the frame of the debate considerably in order to do this. This article and the project from which it is drawn are based on extensive research into primary and secondary sources in diplomatic history that have generally been bypassed in the traditional war powers debate.

In Part I, I describe briefly what postwar presidents have claimed with respect to their power to go to war. Like many scholars, I argue that Truman’s 1950 decision to intervene in Korea without congressional authorization marked a signal change. But while this argument is not new, scholars have been unable to offer a satisfactory explanation of why it occurred and how subsequent presidents were able to claim the Korea decision as a “precedent.” To establish the significance of Truman’s decision, in Part II I compare the power Truman and his successors claimed to the original constitutional plan for war. The specific nature of Truman’s claim allows us to establish with reasonable precision that it was inconsistent with the historical meaning of the Constitution. Along the way, I critique John Yoo’s argument that evidence from the eighteenth century supports the presidentialist position. Part III begins explaining how this constitutional change occurred by elaborating the concept of a constitutional order and describing the prewar constitutional order in which President Roosevelt made decisions prior to Pearl Harbor. Part IV completes the explanation by setting out in detail how Truman’s Korea decision grew out of the circumstances of the early Cold War.